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Long form article on Adverse Possession

Posted on: August 24 2016

The test for acquiring title by adverse possession has not changed in many years. However, the application of that test is complex, taking into account a variety of situations that may affect a claim such as knowledge of the possessor and concurrent rights over the land.

Adverse possession is the possession of land by someone other than the registered proprietor.1 Where there is adverse possession, by definition, the registered proprietor has a right to sue for possession and recover the land. However, where the owner does not reclaim possession within 15 years, s8 of the Limitation of Actions Act 1958 (LAA) prohibits any action to recover that land. Therefore, the registered proprietor’s title to the land is extinguished under s18 of the LAA and, by corollary, ownership of the possessed land is acquired by the possessor.

Conclusion

Adverse possession disputes are often charged with greater emotional content than would be expected based on the value of the land in dispute. That is likely because land has sentimental value above and beyond its commercial value. Regardless, in claims for adverse possession it is best to return to the basics – how long and by what means was the land possessed?

The full article is published in the Law Institute Journal Victoria – August 2016

Author Kieren Mihaly

Kieren Mihaly is a barrister practising in the areas of commercial and property law.

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